MUHAMMAD NAWAZ ABBASI,appeal by leave of the Court has been directed against the judgment dated 21-3-1995 passed by a Division Bench of Lahore High Court, Multan Bench, in a Regular First Appeal arising out of a suit for specific performance of the contract.
2. Leave was granted in this appeal vide order dated 18-12-1995 as under:-- "This was a suit for the specific performance of an agreement of sale dated 10-6-1980; it was brought on 24-4-1988 by the plaintiffs, Abdul Momin, Sardar Ali and Hushiar Ali, respondents herein, against Begum Qamar Isfahani and eight others, petitioners herein. Begum Qamar Isfahani was sued as the owner of the land in question; the remaining petitioners claimed to be the bone fide purchasers for value from Begum Qamar Isfahani. Unfortunately the agreement of sale dated 10- 6-1980 was not brought on record and its exact terms and conditions are not known. According to the plaint the sale consideration was Rs,2,35,000, out of which Rs,50,000 was paid in advance and it was agreed that Begum Qamar Isfahani (the promisor) would have the deed of sale executed when the entire sale consideration was paid. Later another sum of Rs,30,000 was paid on different dates. In her written statement, the promisor alleged that the remaining sale price was to be paid by the month of August (which year it is not stated) at Karachi; she admitted the receipt of Rs,30,000 in addition to Rs,50,000 which she had received at the time of the agreement but alleged that in August, 1981, the plaintiffs had refused to pay the remaining sale price with the result that the sale agreement was put to an end. Later she sold the land on 17-11-1981 to the remaining petitioners.
2. The suit was decreed by the trial Court and the petitioners' appeal was dismissed by the High Court's judgment dated 21-3-1995. The learned Judges in the High Court observed that "in contracts relating to sale of immovable property, generally the time fixed for completion of the agreement is not of its essence and failure to adhere to it does not render the contract unenforceable". The learned Judges held that no evidence to show that time was of the essence was filed and the presumption remained unrequited. In this view of the matter, learned Judges in the High Court held, otherwise too, the parties' conduct showed that time was not of the essence.
As regards the claim of petitioners Nos.2 to 9 that they were bona fide purchasers for value, it was held that the sale in their favour had taken place during the pendency of this suit.
3. Learned counsel for the petitioners referred us to the testimony of Abdul Momin plaintiff as P.W.2 to point out that he did not even know with whom Mr.M.A. Isfahani or Begum Qamar Isfahani, the plaintiff, had entered into the agreement of sale. He did not know the date when the payment of the remaining sale price was to be made; nor was he able to tell the date on which different sums of money, the total being Rs,30,000 were paid by them to the promisor's attorney. It is argued that the agreement of sale dated 10-6-1980 was the best evidence of the terms and conditions of the sale and of the parties' mutual obligations. The evidence given by Abdul Momin plaintiff, it is pointed out, highlights the importance of that document. It is contended further that the presumption that in cases of sale of immovable property, time is of the of contract has been imported from England and it needs reexamination in the changed circumstances. It is pointed out that prices of land had registered a phenomenal increase in the days when this transaction was entered into and the Court must take judicial notice of this fact and apply the doctrine accordingly.
As regards the claim of petitioner No,2 they were bona fide purchasers for value, it was contended that the sale in their favour had in fact taken place on 17-11-1981, that is before the institution of this suit and in any case the circumstance that the plaintiffs had failed to perform their part of the contract within the stipulated period had a material bearing on the question of bona fides.
4. Leave to appeal is granted to consider these contentions."
3. The suit for specific performance of contract filed by the respondents in the present appeal was contested by the appellants and learned Senior Civil Judge, Layyah, in the light of pleadings of the parties, framed the following three issues:--
(1) Whether the plaintiffs have no cause of action to file this suit? OPD
(2) Whether the defendants failed to fulfill the terms of the contract? If so, with what effect? OPD
(3) Whether the plaintiffs are entitled to specific performance of the contract dated 10-6-1980? If so, on what terms and conditions? OPD The burden of proof of the first two issues was on appellants whereas the onus of /proving the third issue was on respondents. The plaintiffs/respondents pleaded in the suit that they entered into an agreement dated 10-6-1980 with Mst.Qamar Isfahani, the owner of suit land for its purchase for a consideration of Rs,2,35,000 out of which an amount of Rs,80,000 was paid in installments and that Mst.Qamar Isfahani due to the illness of her husband, Mirza Abul Hassan Isfahani, could not finalize the transaction of sale by executing the sale deed and subsequently on death of Mirza Abdul Hassan Isfahani, she repudiated the agreement. Muhammad Zamin Rizvi, the attorney of Mst.
Qamar Isfahani, filed written statement on her behalf wherein the execution of sale agreement and receipt of Rs,70,000 as part payment of sale consideration was admitted. The payment of another amount of Rs,10,000 made by the plaintiffs/respondents to Mst. Qamar Isfahani was described as compensation of the trees cut by them from land. It was specifically pleaded in the written statement that the plaintiffs/respondents instead of making payment of the balance price within the stipulated period in terms of the agreement sent message to Mst. Qamar Isfahani that the outstanding amount would be paid after sale of the standing crops but she being in urgent need of money for treatment of her ailing husband, declined further extension of time for payment of balance sale price and having cancelled the agreement, entered into a transaction of sale of land with Faqir Muhammad, appellant No,1, for a consideration of Rs,3,00,000 and executed general power of attorney in his favour. Subsequently, said Faqir Muhammad sold the land to the appellants Nos.2 to 8 in the present appeal. As per averments of the plaint and statement of Abdul Manan (P.W.2), one of the plaintiff/respondent, an amount of Rs,80,000 was paid to Mst.Qamar Isfahani as part payment of sale price of the land. However, he did not contradict the plea taken in the written statement that at the time of last payment of Rs,10,000 on 14-6-1981 it was made clear to the respondents that in case of their failure to make payment of balance price on 14-8-1981 the agreement would be deemed to be cancelled. The witness has stated that payment of balance sale price was offered to the vendor at Karachi in March, 1982 through a bank draft drawn at Muslim Commercial Bank Limited, Sadiqabad and claimed that plaintiffs were in possession of the land under the sale agreement but were wrongly shown as tenant of the land in the Revenue Record. The witness however, has admitted that Mst. Qamar Isfahani became owner of the land, much after the execution of sale agreement on death of her husband. Muhammad Zamin Rizvi, the attorney of Mst. Qamar Isfahani after filing the written statement did not further participate in the proceedings and neither he nor Mst. Qamar Isfahani appeared in the witness-box to make a statement on oath in confirmation of the admission made and plea taken in the written statement.
Faqir Muhammad (D.W.2) appellant in the present appeal, deposed that he entered into the transaction of sale of land without the knowledge of the sale agreement of the plaintiffs- respondents with Mst. Qamar Isfahani. The Court of first instance and Appellate Court have given their verdict on the following question:--
(a) That the mutation in the name of Mst. Qamar Isfahani was sanctioned, subsequent to the execution of sale agreement and she was not in a position to transfer the property prior to the sanction of mutation therefore, the sale in favour of the appellants would be without title;
(b) that the subsequent sale having been taken place during pendency of the suit for specific performance, would be hit by the doctrine of lis pendent;
(c) that the time was not treated as essence of the contract as the parties with mutual understanding extended the period for completion of the agreement from time to time and on the expiry of the extended period, no notice was given by the vendor to the vendees for performance of their obligation.
4. This is an admitted fact that Mst. Qamar Isfahani was not owner of the land either at the time of execution of agreement to sell dated 10-6-1980 or at the time of execution of general power of attorney in favour of Faqir Muhammad on 16-11-1981 and therefore, could not pass on the valid title in the land before 12-7-1983 when she became owner of the land. The general power of attorney given by Mst. Qamar Isfahani to Faqir Muhammad was made part of the record but no such power of attorney, general or special, given by her to Muhammad Zamin Rizvi was brought on record to establish that he being a recognized agent of Mst. Qamar Isfahani filed written statement on her behalf. The suit was decreed by the trial Court and the decree was maintained by the High Court in appeal mainly on the grounds that the time was not essence of the contract and the subsequent sale during the pendency of the suit being hit by the principle of lis pendens would be ineffective to the rights of the plaintiffs-respondents. The case of the appellants was that upon failure of the respondents to make payment of balance sale price within the stipulated period, their agreement stood repudiated and Mst.Qamar Isfahani entered into a sale transaction with Faqir Muhammad appointed him her general attorney who further sold the land to appellants Nos.2 to 8 and that neither Faqir Muhammad nor the remaining appellants had notice of the sale agreement of the respondents with Mst.Qamar Isfahani, therefore, they would be entitled to the protection of section 41 of the Transfer of Property Act 1882, The respondents, on the other hand, pleaded that the execution of sale agreement was admitted in the written statement which could not be enforced for want of clear title of Mst.Qamar Isfahani on the date mentioned in the agreement for the final payment, therefore, the time would not be considered as essence of the contract. It was next asserted that subsequent sale made during the pendency of the suit would be hit by the principle of and consequently, the appellants would not be treated as bona fide purchasers to claim the protection of law. Learned counsel for the appellants has contended that except the sole statement of Abdul Momin, no other evidence was brought on record to prove the execution of sale agreement by Mst.Qamar Isfahani and the alleged admission in the written statement without proper proof would not ipso facto be an evidence of the part payment of the sale price and the existence of a valid agreement between the parties. The learned counsel submitted that the respondents being in possession of land as tenant even if entered into an agreement of sale and made part payment of the sale price as pleaded, they upon failure to make payment of the balance price by the target date fixed in the agreement, could not claim enforcement of the agreement already repudiated and the subsequent sale of land by Mst. Qamar Isfahani would not hit by the principle of lis pendens. Learned counsel added that neither proper issues were framed on the above controversial question nor the parties produced evidence in support of their respective stand, still the trial Court and also the Appellate Court by raising presumption on the question of facts regarding the existence of agreement and that the time for the performance of agreement was not essence of contract, decreed the suit.
5. Learned counsel for the respondents, on the other hand, has contended that the material facts relating to the existence of sale agreement and making of part payment of sale price by the respondents were admitted in the written statement filed on behalf of Mst. Qamar Isfahani which was not contradicted and rebutted by the appellants by bringing any evidence oral or documentary on the record. The learned counsel, however, conceded that at the time of execution of agreement to sell, Mst. Qamar Isfahan' was not owner of land and the same would not take effect before she could acquire title in the land and consequently, it being not enforceable by the specified date, the time would not be the essence for performance of the contract. In reply to the contention of appellants that they had no notice of the sale agreement, learned counsel submitted that it was the duty of appellant to ascertain the correct factual position and make necessary inquiry about the nature of possession of the respondents before entering into the transaction of sale and without proof of taking such precaution, the appellants would not be deemed to be the bona fide purchasers to seek the protection of law.
6. Learned counsel for the parties cited a number of judgments in support of their respective contentions but the same without proof of essential facts, would be of no help to them therefore, we need not dilate upon the propositions discussed therein.
7. Mirza Abdul Hassan Isfahani, the original owner of the property died in November, 1981 and mutation of inheritance in respect of the land in dispute was sanctioned in the name of Mst. Qamar Isfahani his widow, Mirza Muhammad and Mirza Zia, his sons and Mst. Amir-un-Nisa his daughter, on 10-12-1982. Mst. Qamar Isfahani during the lifetime of her husband filed a suit against him seeking a declaration that she was the exclusive owner of the suit land and this suit was decreed in her favour on 17-7-1983 after death of Mirza Abdul Hassan with the consent of his legal heirs. The perusal of the agreement dated 3-7-1980 between the respondents and Mirza Abdul Hassan Isfahani would show that the possession of the land was given to the respondents as lessee for a period of one year and no other document in proof of the claim of the respondents that they were holding possession of land under sale agreement was brought on record. Prior to the filing of the present suit Abdul Momin, respondent herein, filed a suit for permanent injunction against the appellants wherein he did not plead that respondents were in possession of land under the sale agreement. The transaction of sale in favour of appellants Nos.2 to 8 was finalized through the arbitration and the award given by the arbitrator was made rule of the. Court by Senior Civil Judge Layyah vide judgment dated 21-6-1982 in an application moved by them ,under section 20 of the Arbitration Act, 1940 when Mst.Qamar Isfahani vendor, was not exclusive owner of the entire suit land. There is nothing on record to show that Faqir Muhammad was holding general power of attorney on behalf of all legal heirs of Mirza Abdul Hassan and that Muhammad Zamin Rizvi was an authorized agent of Mst.Qamar Isfahani and was competent to represent her and file written statement on her behalf. Faqir Muhammad while holding power of attorney only on behalf of Mst.Qamar Isfahani and acting as her agent, could not make sale of the land in exercise of the share of Mst.Qamar Isfahani before 17-7-1983 on which date she became owner of entire land. This is settled law that the controversial questions of facts cannot be proved merely on the basis of pleadings and a particular fact pleaded by a party must be proved by the said party and thus the existence of a written agreement and its contents in full without producing the same in Court, could not be presumed to have been proved through oral assertion or on the basis of partial admission of agreement in the written statement.
8. The general rule is that the pleadings of parties are not substitute of evidence and it being not a substantive evidence, the averments made in the pleadings would carry no weight unless proved through the evidence in Court or admitted by the other party. The written statement of a defendant who .Was not examined in the case, cannot be utilized and the admission made therein cannot be taken into consideration unless proved through the evidence and in any case the statement of facts and the admission in the written statement must be taken as a whole and cannot be dissected to use only a certain portion of such statement. There is nothing on record to show that Mst.Qamar Isfahani was properly served directly or through her agent and it was also not proved on record that Muhammad Zamin Rizvi was authorized to act as general or special attorney of Mst.Qamar Isfahani and represent her in Court. The respondents except the oral assertion, have not brought any other evidence in support of their claim and the suit was decreed mainly on the basis of admission in the written statement which was filed by Muhammad Zamin Rizvi as attorney of Mst. Qamar Isfahani, therefore, the concurrent findings of the two Courts on the question of facts, would be without evidence. We also find that the sale of suit land in favour of appellants through Faqir Muhammad, the general attorney of Mst.Qamar Isfahani in respect of which a decree was passed on 21-6-1982, would be invalid in excess of the share of Mst.Qamar Isfahani as she acquired title in the remaining land on the basis of consent decree passed on 17-7-1983. The essential questions regarding the authority of Muhammad Zamin Rizvi to act as general or special attorney of Mst.Qamar Isfahani and the validity of sale of land by Faqir Muhammad, her attorney, in excess of her share were not attended by the trial Court and also the Appellate Court. Instead the dispute was decided on the assumption that Mst. Qamar Isfahani was the sole owner of the land on the date of institution of suit and subsequent transaction of sale. We therefore, conclude that:-
(a) Without bringing on record general power of attorney allegedly executed by Mst.Qamar Isfahani in favour of Muhammad Zamin Rizvi, the written statement filed by him on her behalf and the admission contained therein, would be of no consequence and there would be no proof of existence of a valid and legal agreement between the parties.
(b) The sale agreement in question if at all was in existence and Muhammad Zamim Rizvi was an authorized agent of Mst.Qamar Isfahani and was competent to file written statement on her behalf still before 17-7-1983 when Mst. Qamar Isfahani became exclusive owner of land, the agreement would be enforceable only to the extent of her share and the land falling in the share of the remaining legal heirs of Mirza Abul Hussain could be sold during the pendency of suit which was filed in April 1982.
(c) The claim of ownership of land of the appellants Nos.2 to 8 is based on a decree passed by the Civil Court on 21-6-1982 whereas Mst.Qamar Isfahani acquired ownership in the suit land on the basis of a consent decree passed on 17-7-1983, therefore, the sale of land by her in excess of her share before the said date, would be invalid.
9. The suit was decreed on the basis of pleadings of the parties without attending the above important .Aspects of the case and going into the controversial questions of facts required to be proved and decided on the basis of evidence. We have noticed that neither the specific issues were framed on these important mixed questions of law and facts nor the parties produced the evidence essential for decision of these questions and without proper decision of the same, there could be no effective adjudication of the dispute between the parties. We, therefore deem it proper to send the case back to trial Court to enable the parties to produce further evidence on all issues including the additional issues to be framed by the trial Court on the above questions.
Consequently, we set aside the impugned judgment and remand the case to the trial Court for decision afresh in the light of the observations made in the preceding paragraphs. Since this is an oldcase, therefore, the trial Court should make efforts to dispose it of within six months. The appeal stands allowed in the above terms. The parties shall bear their own costs.